United States District Court, E.D. Missouri, Eastern Division
[Copyrighted Material Omitted]
Christian Ballard, Gregory Westbrooks, Joe Horn, Plaintiffs
(4:14-cv-01267-CDP): Richard F. Lombardo, LEAD ATTORNEY,
SHAFFER AND LOMBARDO, Kansas City, MO; Brett A. Emison, WENDT
GOSS PC, Kansas City, MO; Charles R.C. Regan, Michael Thomas
Yonke, YONKE LAW, LLC, Kansas City, MO.
National Football League Players Association, Raymond Lester
Armstrong, III, Kevin Mawae, Defendants (4:14-cv-01267-CDP):
David Louis Greenspan, Jeffrey L. Kessler, LEAD ATTORNEY,
WINSTON AND STRAWN LLP, New York, NY; James G. Martin, LEAD
ATTORNEY, DOWD BENNETT, LLP, Clayton, MO.
Neil Smith, Ladell Betts, Anthony Davis, Vaughn Booker, Ron
Dugans, Sheddrick Gurley, Chad Johnson, Kendyll Pope, Corey
Sawyer, Shevin Smith, Tarlos Thomas, Kevin Williams,
Plaintiffs (4:14-cv-01559-ERW): Brett A. Emison, LEAD
ATTORNEY, LANGDON AND EMISON, Lexington, MO; John G. Simon,
LEAD ATTORNEY, THE SIMON LAW FIRM, P.C., St. Louis, MO; Kevin
E.J. Regan, LEAD ATTORNEY, REGAN LAW FIRM, Kansas City, MO;
Richard F. Lombardo, LEAD ATTORNEY, SHAFFER AND LOMBARDO,
Kansas City, MO.
Tamarick Vanover, Plaintiff (4:14-cv-01559-ERW): Brett A.
Emison, LEAD ATTORNEY, LANGDON AND EMISON, Lexington, MO;
Kevin E.J. Regan, LEAD ATTORNEY, REGAN LAW FIRM, Kansas City,
MO; Richard F. Lombardo, LEAD ATTORNEY, SHAFFER AND LOMBARDO,
Kansas City, MO.
National Football League Players Association, Defendant
(4:14-cv-01559-ERW): James G. Martin, LEAD ATTORNEY, DOWD
BENNETT, LLP, Clayton, MO; David Louis Greenspan, WINSTON AND
STRAWN LLP, New York, NY; Jeffrey L. Kessler, PRO HAC VICE,
WINSTON AND STRAWN LLP, New York, NY.
Raymond Lester Armstrong, III, Kevin Mawae, Defendants
(4:14-cv-01559-ERW): James G. Martin, LEAD ATTORNEY, DOWD
BENNETT, LLP, Clayton, MO.
D. PERRY, UNITED STATES DISTRICT JUDGE.
consolidated cases come before me on nearly identical motions
to dismiss filed by the National Football League Players
Association (" NFLPA" ) and two of its former
presidents. The plaintiffs, who are former National Football
League players and members of the NFLPA, brought counts based
in fraud, civil conspiracy, and negligence. The fraud and
civil conspiracy counts allege breaches of the duty of fair
representation and so are completely preempted by section
9(a) of the National Labor Relations Act. The negligence
counts require an interpretation of collective bargaining
agreements, and they are resultantly preempted by section 301
of the Labor Management Relations Act. Both sets of preempted
claims are untimely, and they will be dismissed. Finally, the
plaintiffs assert a count for medical monitoring, which is
derivative of the other counts and will also be dismissed.
The defendants' motions will be granted.
are former players (collectively, " Players" ) for
various National Football League (NFL) teams whose careers
ranged from 1975 to 2012. They brought two separate cases
against their union, the National Football League Players
Association (NFLPA), and two of its former presidents, Kevin
Mawae and Raymond Lester Armstrong, III (the "
Individual Defendants" ).
Ballard case, No. 4:14CV1267 CDP, is a putative
class action brought in this District by Christian Ballard
(who played from 2011-2012), Joe Horn (1996-2007), and
Gregory Westbrooks (1975-1981). The Smith case, No.
4:14CV1559 CDP, was brought in state court by thirteen
players: Neil Smith (1988-2000), Ladell Betts (2002-2010),
Anthony Davis (1993-2010), Vaughn Booker (1994-2002), Ron
Dugans (2000-2002), Sheddrick Gurley (2002), Chad Johnson
(formerly Chad Plummer, 1999-2001), Kendyll Pope (2004-2005),
Corey Sawyer (1994-1999), Shevin Smith (1998-2000), Tarlos
Thomas (2002), Tamarick Vanover (1995-1999, 2002), and Kevin
Williams (1999-2001). Players in both cases assert nearly
identical claims for fraudulent concealment, fraud, negligent
misrepresentation, negligence, negligent hiring (against the
NFLPA only), negligent retention (against the NFLPA only),
medical monitoring, and civil conspiracy.
Smith defendants removed that case to this court,
and the Honorable E. Richard Webber denied the Smith
players' motion to remand. See Smith v.
Nat'l Football League Players Ass'n, No.
4:14CV1559 ERW, 2014 WL 6776306, at *1 (E.D. Mo. Dec. 2,
2014), ECF No. 34. In that Order, Judge Webber held that the
Smith players' claims for fraudulent
concealment, fraud, and civil conspiracy were preempted by
the duty of fair representation under the National Labor
Relations Act. Judge Webber also found that the
Smith players' claims for negligent
misrepresentation were preempted under section 301 of the
Labor Management Relations Act. Thereafter, the
Smith case was transferred to me and consolidated
with the Ballard case for pretrial purposes.
the Ballard and Smith pleadings, the
substantive allegations are nearly identical. During their
Players suffered multiple repetitive traumatic head impacts
and concussions during practices and games. These injuries
were neither acknowledged nor treated while Plaintiffs were
players. Players paid money throughout their careers to the
NFLPA as association dues. The NFLPA assured Players they
would protect them and owed them a fiduciary duty, stating
that they would act in Players' best interests at all
times. However, the NFLPA did not spend significant funds on
research into ways to mitigate or prevent brain trauma, such
as developing safer helmets, competition rules, or football
equipment. The NFLPA also failed to certify medical personnel
that treated NFL players, despite having a duty to do such.
allege that the Defendants were in a superior position of
knowledge, and they knew the dangers and risks associated
with repetitive head impacts and concussions. They attained
this knowledge from the NFLPA's own medical consultants
and commissioned studies on the subject, the NFLPA's
participation in the Retirement Board of the Bert Bell/Pete
Rozelle NFL Player Retirement Plan, and the NFLPA's
participation in the Mild Traumatic Brain Injury Committee.
Despite that superior knowledge, the Defendants knowingly
concealed the information from the Players and fraudulently
misrepresented there was no link between head impacts and
cognitive decline. The Players allege that these actions
caused or contributed to cause Players to suffer long-term
neuro-cognitive injuries, including dementia, depression,
memory loss, and chronic traumatic encephalopathy ("
CTE" ), a condition caused by repetitive sub-concussive
and/or concussive blows to the head. The Players allege that
by concealing or omitting information, the Defendants caused
Players to ignore the need for treatment.
cases, the NFLPA has filed nearly identical motions to
dismiss, arguing that all the Players' claims allege that
the NFLPA failed in its duty of fair representation and are
thus preempted by the NLRA; that any duty beyond fair
representation would necessarily emanate from the NFL-NFLPA
collective bargaining agreements (CBAs) and, thus, are
preempted by section 301 of the LMRA; and that the Players
fail to state a claim. The Individual Defendants have also
filed in both cases nearly identical motions to dismiss that
incorporate the NFLPA's arguments as well as raise
additional arguments, such as the absence of personal
jurisdiction, that are tailored to their status as
Defendants rely on CBAs attached as exhibits to their
supplementary briefing in support of their motions to
dismiss. A motion to dismiss pursuant to Rule 12(b)(6) must
be treated as a motion for summary judgment when matters
outside the pleadings are presented and not excluded by the
trial court. McAuley v. Fed. Ins. Co., 500 F.3d 784,
787 (8th Cir. 2007) (quoting Hamm v. Rhone-Poulenc Rorer
Pharms., Inc., 187 F.3d 941, 948 (8th Cir. 1999)). Where
the extraneous documents are central to the plaintiff's
case, such as the written contract in a contract dispute, the
court may examine the documents in deciding a motion to
dismiss. See Stahl v. U.S. Dep't of
Agriculture, 327 F.3d 697, 700 (8th Cir. 2003) (citing
Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661
(7th Cir. 2002)). This is so even, where the relevant
contract documents are attached as exhibits to the motion to
dismiss instead of to the pleadings. See
Rosenblum, 299 F.3d at 661. A court may also
consider any documents of which it has taken judicial notice,
such as those
in the public record. Stahl, 327 F.3d at 700.
Defendants have requested that this court take judicial
notice of the various CBAs that the NFLPA attached to its
supplementary filings. Although the Players argue that I
should treat the motions as motions for summary judgment
under Rule 56, Fed. R. Civ. P., this is a case where analysis
of the CBAs is necessary to decide whether a claim has been
stated. I will take judicial notice of the
CBAS. Cf. Dent v. Nat'l
Football League, No. C 14-02324 WHA, 2014 WL 7205048 at
*2 (N.D. Cal. Dec. 17, 2014) (keeping motion as one to
dismiss after taking judicial notice of CBAs where agreed by
the parties and where necessary to rule on a Rule 12, Fed. R.
Civ. P., motion).
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. When considering a
Rule 12(b)(6) motion, the court assumes the factual
allegations of a complaint are true and construes them in
favor of the plaintiff. Neitzke v. Williams, 490
U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Matters of public record referenced in a complaint may be
considered by the court in determining a Rule 12(b)(6) ...